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TMI Blog1971 (11) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... endants 1 to 3. The fourth defendant was Shrimati Kallo. Haji Faqir Bux died during the pendency of the litigation. Shrimati Kallo also died during the pendency of this litigation and they are represented in the appeal by their legal representatives. The property, of which partition was sought, consists of a big ahata in mohalla Rahim ganj in the city of Lucknow. 3. The property originally belonged to Begum Mumtaz Mahal wife of Nawab Ghaziudin Hyder. She gifted the property to her sister-in law, Shrimati Mulko, in 1874. Shrimati Mulko sold it to Babu Rahim Bux who was a benamidar for his father Babu Khuda Bux. Babu Khuda Bux died in 1895; he was succeeded by three sons Rahim Bux Karim Bux and Nabi Bux, ten daughters and a widow. In 1903, seven out of the ten daughters relinquished their shares in favour of their brothers and mother. In 1904, the three sons, the remaining three daughters and their mother mortgaged with possession the entire estate in favour of the Maharaja of Balrampur by a deed dated February 12, 1904 In 1919, the Maharaja brought a suit on the mortgage and obtained a preliminary decree for sale. Rahim Bux and his two brothers, not being able to pay of the mortg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Division Bench accepted the case of permanent tenancy set up by defendants 1 to 3. 6. There is no dispute in this appeal as regards the respective shares of the parties. The oily question for consideration is whether the case of defendants 1 to 3 that they were permanent lessees of the portions marked blue and red in the commissioner's plan has been established. 7. As all the courts below have disbelieved the oral evidence adduced to establish the permanent leases, we do not think it necessary to deal with the same. So the question is whether the documentary evidence in the case would support the case of permanent leases put forward by defendants 1 to 3. 8. In the deed of gift dated September 18, 1874, executed by Mumtaz Mahal in favour of Mulko, Mumtaz Mahal referred to the ahata as a grove with pucca shops and in her possession. It would seem from that document that nobody else had put up any constructions in this property at the time the gift deed was executed; nor is there any mention of the permanent lease in 1870 in favour of Haji Khuda Bux or his predecessor-in-interest of any portion of the property. 9. On January 16, 1885, Mulko executed the sale deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land and the shops. They visualised in that event they would get compensation in respect of the buildings which they had constructed; so they provided that any such compensation obtained or realised from the owner of the land would be treated as their joint property. This Clause shows beyond any doubt that the executants did not consider that they were permanent lessees of the land in 1909. 12. In or about the year 1918, when the entire estate was in the possession of the Maharaja of Balrampur as mortgagee, Faqir Bux had made certain constructions on the property and that was objected to by the Maharaja. There was an agreement between Faqir Bux and the Maharaja on the 29th of January, 1918 (Exhibit 12). The agreement provided that Faqir Bux would continue to occupy the land and the shops on payment of rent which he was paying at that time and that if the land was purchased by the Maharaja and he required Khas possession, then he (Faqir Bux) would vacate the land without any compensation for the buildings or if the mortgager redeemed the property, he would enter into a fresh agreement with him for continuing in possession of the land and the shops. This is a registered docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ji Khuda Bux had erected structures on land with their own funds with or without the permission of Balrampur Estate, that rent was to continue to be the same and could not be enhanced, that he (Faqir Bux) was liable to be evicted without payment of compensation if the mortgagee became the owner of the property and required it to be vacated or if the mortgagor redeemed the property, there would be a fresh agreement of tenancy between the lessee and the mortgagor. The Division Bench was of the view that the admission implied in the recital had no evidentiary value as the lease of the land and shops had originally been obtained by Haji Khuda Bux, that he died only on 10-5-1918, and when this agreement was entered into on 29-1-1918 Khuda Bux was alive and was the virtual owner of the shops and the lessee of the land. The Division Bench held that since Faqir Bux had no legal interest in the property or the shops at the time, the admission implied in the agreement that there was no permanent leases in favour of Khuda Bux cannot bind Khuda Bux or his heirs after his death. This view of the Division Bench might be technically correct. But that would not help the respondents. The point to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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